Responding to the COVID-19 crisis requires a commitment to the fundamental values that underpin New Zealand's legal system, New Zealand Law Society | Te Kāhui Ture o Aotearoa President Tiana Epati says.
Ms Epati has written to the Chair of the Epidemic Response Select Committee, Simon Bridges, offering the Law Society's assistance in considering the legal measures needed to meet the COVID-19 pandemic.
She says the Law Society has called together legal experts from its Rule of Law, Human Rights and Privacy, and Public and Administrative Law committees to discuss how the Law Society might be able to help the Epidemic Response Committee and the Government deal with the pandemic.
"Like everybody else in New Zealand, lawyers and the Law Society recognise the danger COVID-19 poses to New Zealanders and the complexity of dealing with this unprecedented state of affairs. Responding to the crisis requires a commitment to the fundamental values that underpin our legal system.
"There is a general acceptance that in times like this, the first duty of government is the protection of its people, and governments might need to use the law in ways we do not normally accept".
This does not mean the rule of law is any less important, she says. In many ways the rule of law is more important now than ever before.
"New Zealanders must accept restrictions in order to defeat COVID-19. However, clarity about the constraints on our usual freedoms of movement and association and on commerce, and clarity about the legal basis for these constraints, is central to ensuring compliance and ongoing public confidence and support."
Important to identify legal foundations
The Law Society considers it important to identify the legal foundations for the various responses by the Government to the epidemic, Ms Epati says.
"The most conspicuous example is the public confusion that resulted from government communications that are now legally impermissible - that is, contrary to law - and activities that, though lawful, are undesirable and discouraged."
Both types of communications from the Government are helpful and necessary, she says - just as in more normal times, not efery behaviour needs or can have a criminal or other regulatory response.
:"But the law could be clear, clearly enforceable, and able to be easily accessed and understood by all to whom it applies. We anticipate that some of the confusion may be addressed by the most recent order dated 3 April 2020 made under secton 70 of the Health Act 1956."
Public access to key documents
She says the Law Society also welcomes the publication of key legislation, orders and other documents on the COVID-19 website. This could be improved further by creating an explicit link between particular practical instructions or directions and the legal basis on which they are made.
"Legal prohibitions should be explicitly identifies, as should the consequences of default. All the legal instruments, policy papers and explanations of their legal foundations should be published as soon as they are available, so that New Zealanders can clearly see the justifications for what is being done and the statutory powers being relied upon."
Recognising that the realities of the current crisis have prevented the normal policy and law-making process, the Law Society believes as time goes on that draft instruments and policy papers should be made available to enable New Zealanders to comment on proposed measures that affect them or in which they are otherwise interested," Tiana Epati says.
"It is particularly important that the values and processes set out in the Legislation Guidelines are maintained as much as possible. People affected should be consulted where feasible. Decisions that affect peoples' rights should be reviewable in some way. Where there are constraints on rights and interests usually recognised by law, sunset clauses are desirable to prompt re-examination of the need for ongoing restrictions."
Scrutiny of legislative instruments
Ms Epati says if the Henry VIII powers in the Epidemic Preparedness Act 2006 are used, Parliament needs to be able to exercise its disallowance power even if it cannot meet as it usually might. Any future statute contemplating more extensive Henry VIII powers should be carefully tailored to provide for public consultation where possible and should be subject to approval or disallowance through the parliamentary process.
Some thought should be given to establishing a role for the Epidemic Response select commmittee in the process, as well as the Regulations Review Committee, she suggests. Re-convening Parliament also needs to be considered if that can be done in a safe way, before the end of the currently notified Level-4 period, and certainly if it is extended.